HIT-AND-RUN BICYCLE ACCIDENT OR CRIME? SHE FOUGHT WITHOUT A LAWYER AND WON CRIME VICTIM'S COMPENSATION
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Car Accident Injury Attorney)
Manhattan case that was decided on March 29, 2011.
Acting without a lawyer or attorney, a crime victim (Robin Tooker) fought the system - New York State Crime Victims Board - and won.
THE FACTS:
On April 20, 2007, the injured Petitioner was struck by a bicyclist while she was walking in the crosswalk across a downtown Manhattan street. According to her account, "a guy on a delivery bike" hit her from behind, knocked her down and "left [her] lying in the middle of the street." As a result, she broke her wrist. Petitioner was taken by ambulance to St. Vincent's Hospital, where she remained for four days during which time she underwent surgery on her left wrist. Petitioner alleges that as a result of this injury she cannot use her wrist, has difficulty opening and closing her hand, and has lost the use of several fingers. She also states that she was unable to work at her profession as a photographer for "about a year."
In July 2008, Petitioner filed an application with the Crime Victim's Board, seeking compensation for over $20,000 in medical expenses she incurred as a result of her injuries.
On January 14, 2009 the Crime Victim's Board issued a decision denying her claim.
In a the Crime Victim's Board ruled that it may provide an award if there is evidence that "a crime was committed." It concluded, however, that the evidence provided indicates that what happened to the injured Petitioner "was an accident, not a crime."
In a letter to the Crime Victim's Board Petitioner appealed this decision.
On May 18, 2010, a three member panel of the CVB affirmed Mr. Mosiello's decision, providing no further explanation.
THE LAW:
Pursuant to Executive Law § 624(a), to be eligible for an award from the CVB, the claimant must be a victim of a crime. Both the terms "crime" and "victim" are defined in Executive Law § 621. A crime is "an act committed in New York state which would, if committed by a mentally competent criminally responsible adult ... constitute a crime as defined in and proscribed by law". A victim is "a person who suffers personal physical injury as a direct result of a crime".
The CVB argues that the petition should be dismissed as a matter of law because the CVB may only compensate victims of crime and that in the instant case no crime occurred. It relies on Vehicle and Traffic Law ("VTL") § 600, under which it is a crime for the driver of a "motorized vehicle" to leave the scene of an accident. The CVB, relying on § 125 of the VTL and related case law, argues that § 600 does not cover "hit and run" bicylists.
In reply, Petitioner submits an opposing affidavit, arguing that the CVB relies on the wrong subsection of the VTL. She argues that she was the victim of a crime under VTL § 1241, which makes "[l]eaving the scene of an incident involving a wheeled non-motorized means of conveyance," including bicycles, a Class B misdemeanor where a "serious physical injury" has resulted. A serious physical injury under this law includes "physical injury" which causes "protracted impairment of health or protracted loss or impairment of the function of any bodily organ." VTL § 1241 & Penal Law § 10(10).
THE DECISION:
Here, CVB's argument that Petitioner has no cognizable claim for compensation because being struck by a "hit and run" bicycle does not constitute a crime under VTL § 600 is unconvincing. As pro se Petitioner has rightly pointed out, in her situation, § 600 is not the relevant statutory provision. More pertinent to these proceedings is VTL § 1241, which provides that leaving the scene of an incident involving a bicycle which has resulted in a "serious physical injury" is a class B misdemeanor.
Petitioner has presented evidence, in the form of doctors' bills and an ambulance report, to support her contention that she suffered serious injuries as a result of her being hit by a bicyclist who then fled the scene. According to Petitioner these injuries have left her with limited use of her wrist, hand and fingers. Giving her "the benefit of every favorable inference" this court finds that she has at least made out a cognizable claim that she was a victim of a crime pursuant to VTL § 1241. Therefore, CVB's cross-motion to dismiss should be denied and Petitioner should be allowed to continue litigating her Article 78 claim.
In accordance with the foregoing, it is
ORDERED that Respondent's cross-motion to dismiss is denied; and it is further
ORDERED that Respondent has 20 days from service of notice of entry of this order in which to answer the Petition.
RELATED POSTS:
BICYCLE HELMETS PROTECT CHILDREN'S BRAINS IN CASE OF AN ACCIDENT (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on February 28, 2011)
BICYCLIST PLOWS INTO PEDESTRIAN IN MANHATTAN'S CENTRAL PARK, AND KEEP GOING (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on August 8, 2010)
CENTRAL PARK BIKE RIDER INJURED IN COLLISION ACCIDENT WITH BICYCLE RACER (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on June 29, 2010)
BROOKLYN BICYCLE ACCIDENT LAWYER'S TOP TEN THINGS THAT GO THROUGH YOUR MIND AS YOU HAVE A BICYCLE ACCIDENT (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on April 29, 2010)
NEVER GIVE UP; NEVER STOP FIGHTING FOR JUSTICE FOR CLIENTS HURT BY THE NEGLIGENCE OF ANOTHER (Posted by Brooklyn Car Accident Injury Attorney Gary E. Rosenberg on December 8, 2009)
